Discrimination: no continuing act if alleged acts not discriminatory

If a claimant relies on multiple acts of discrimination to establish conduct extending over a period of time, the alleged acts must be discriminatory (South Western Ambulance Service NHS Foundation Trust v King).

Continuing acts and time limits

Discrimination claims, including victimisation claims, need to be brought within three months of the alleged acts of discrimination or victimisation. Where there are multiple allegations, claimants can argue they are part of conduct extending over a period of time (a “continuing act”).  In that case, they must bring their claim within three months of the end of the course of discriminatory conduct.  

Mrs King raises grievance 

Mrs King was employed by South Western Ambulance Service NHS Foundation Trust (“the Trust”) from 21 November 1991. In October 2016, she lodged a grievance against her managers, which included discrimination and victimisation allegations. 

Grievance dismissed 

An external consultant considered her grievance. The consultant’s outcome report dated 8 March 2017 dismissed Mrs King’s allegations. Mrs King appealed. The Trust rejected her grievance appeal in early September 2017. 

Mrs King claims victimisation 

Mrs King was dissatisfied with the outcome and issued a claim form on 11 December 2017 claiming victimisation. She claimed the Trust had subjected her to a number of detriments as a result of her raising her grievance, starting with the grievance report outcome and ending with the rejection of her grievance appeal. She argued these amounted to victimisation.

Tribunal rules victimisation occurred and claim brought in time

The employment tribunal ruled that the March 2017 grievance report had been inadequate and that this amounted to victimisation. It rejected all her other victimisation complaints. Importantly, it rejected her claim that the dismissal of her grievance appeal was an act of victimisation. This was the only alleged detriment she suffered in the three months before she commenced early conciliation. Nevertheless, the employment tribunal ruled she had brought her claim in time. It considered there was a continuing act, commencing with the report outcome and ending with the rejection of her grievance appeal. 

The Trust appealed to the Employment Appeal Tribunal.  

Employment Appeal Tribunal overturns tribunal decision

The Employment Appeal Tribunal upheld the Trust’s appeal. The tribunal had found that the only detriment Mrs King had suffered was the inadequacy of the grievance report, many months before she brought her claim. It had found the Trust’s other actions were not acts of victimisation. Therefore, these other acts could not form part of a continuing act of discrimination and the claim was out of time.  

However, it sent the claim back to the tribunal to decide if time should be extended on just and equitable grounds. 

Implications

Claimants can only rely on a continuing act of discrimination if the acts relied on amount to unlawful discrimination or victimisation. This may be useful for respondents dealing with multiple allegations of discrimination extending over a period of time. If a tribunal finds the later acts are not unlawful discrimination, the claim may be out of time. 

The decision also acts as a reminder for claimants of the importance of issuing their claim in time.